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2016 (1) TMI 653 - CESTAT MUMBAI

2016 (1) TMI 653 - CESTAT MUMBAI - TMI - Service tax liability under the category of ‘Commercial and Industrial Construction' services - penalties imposed - Held that:- It is seen from the records that appellant has been constantly disputed the service tax liability without providing any details to the lower authorities is an indicator that the appellant's intention to evade service tax liability. Accordingly, we hold that the penalty imposed by the first appellate authority under Section 78 of .....

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ellant needs to be extended the benefit of discharge of penalty of an amount of equivalent to 25% of the service tax liability ascertained in this case. We do so. Appellant shall discharge the penalty under Section 78 as imposed by the first appellate authority within 30 days of the receipt of certified copy of this order and report the same to the adjudicating authority and the first appellate authority; failing which, appellant shall be required to discharge the entire penalty as imposed by th .....

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appellant under the category of Commercial and Industrial Construction' services. It is the case of Revenue that appellant had provided the said services to telecom service providers for constructing foundation for towers. The assessee's claim is that the services of construction of RCC foundation is not covered under Commercial and Industrial Construction as the said foundation includes bolts on which the tower is erected hence rightly classifiable under Erection, Commissioning and Inst .....

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appeal filed by Revenue. Operative portion of the said order is as under:- "In view of above, I allow the appeal filed by the department and reject the appeal filed by the assessee. The captioned order-in-original is therefore, modified as under:- i) Under proviso to Section 73(1) of Finance Act, 1994 the service tax amount of ₹ 9,51,094/- and Ed. Cess of ₹ 19,022/- are confirmed and recoverable from the assessee. Since the service tax and Ed. Cess were already paid, the same a .....

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t would not get covered under the definition of "Commercial and Industrial Construction Services" and would be correct covered under "Erection, Commissioning and Installation" services with effect from 01.05.2006 wherein structures whether pre-fabricated or otherwise are included for liability to service tax. After taking us through the records and the submissions made before the lower authorities he would submit that the impugned order be set aside. It is his submission that .....

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nstruction of a new building or civil structure or part thereof. It is undisputed that appellant is engaged in providing of services of construction of foundation for the telecom towers which is nothing but a civil structure or part thereof. In our considered view the definition of the construction services as per Section 65(30a) of the Finance Act, 1994 and as amended from time to time would cover the services rendered by the appellant. 6.1 As regards the submission made by the learned Consulta .....

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ion Services". In view of this we hold that both the lower authorities are correct in upholding the service tax liability along with interest. 6.2 As regards the penalties imposed by the first appellate authority we find that the penalty imposed under Section 77 of the Finance Act, 1994 is correct as the appellant had not filed any returns with the authorities. We uphold the said penalty imposed by the first appellate authority. 6.3 As regards the penalty imposed under Section 78 of the Fin .....

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ppellant's intention to evade service tax liability. Accordingly, we hold that the penalty imposed by the first appellate authority under Section 78 of the Finance Act, 1994 is correct. However, we find that the first appellate authority has not extended the benefit of paying 25% of the penalty imposed under Section 78 as per the provisions. The 2 nd proviso to Section 78(1) of the Finance Act, 1994 as it applied to the period in question in this appeal reads as under:- "Provided for th .....

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